Interesting Case On Ilr's Probationary Period Requirements (uk)

[vinny]

See TA (Spouse – requirements for indefinite leave) Pakistan [2007] UKAIT 00011.

[the scouser]

Very interesting and informative, Vinny.

If I may précis the judgement, it essentially says that as things currently stand, the Home Office would be within its rights to refuse every single spouse ILR application, as the applicant could not have possibly spent two years in the UK, which is a requirement of the immigration rules. As a consequence, all applications made by those who entered with a two-year visa, and have not had an extension, are made outside of the immigration rules and, as such, the Home Office's consideration of them is discretionary. It recommends that if an applicant wishes to be within the immigration rules, they will have to apply for a short extension, only seeking ILR when they have physically spent two years in the UK.

Scouse.

[atlastaname]

Very interesting , and a little scary for those thousands affected. Others may read it differently but to me this shows a nasty spiteful streak in the Home Office.

Edited February 27, 2007 by the scouser
Pointless vitriol removed.

[the scouser]

The point is not that the Home Office are doing this, but that if the letter of the law were to be followed, then they should. In this instance, no fault lies with the Home Office, but with the conflicting legislation.

Scouse.

[GU22]

Quite. If the Home Office were as spiteful as suggested by some then my wife, among countless others, would not have received her ILR when she did.

They actually chose to ignore that she had in fact arrived in the UK more than 28 days after her SV was dated, and so her ILR application was submitted too early. As I say, they ignored this and issued her ILR anyway; if they had been going by the book they should have issued her with FLR and told her to reapply for her ILR.

Spiteful? Don't think so.

Edited February 27, 2007 by GU22

[Eff1n2ret]

I think the Home Office will have to do something about this, on the lines suggested in Para19 of the judgement. It must be against natural justice to leave an anomaly in the law which can be exploited by officialdom whenever they want to knock down an application which they don't like the look of.

The only way someone could comply with the law as it stands would be to travel almost immediately after the issue of the visa, and submit their application by courier only a day or two before their leave expires. Having applied in time, they would have leave until a decision on their case, which could take at least a couple of weeks if payment is made by cheque, so the second anniversary would pass before the file is actually looked at.

But it's a rum do.

[Richard W]

It recommends that if an applicant wishes to be within the immigration rules, they will have to apply for a short extension, only seeking ILR when they have physically spent two years in the UK.

Would a smaller donation to the ruling party do instead?

Whatever happened to De minimis lex non curat?

I was mightily relieved when I learnt that a registry marriage was valid even though it be contrary to the couple's immigration status. I had a nightmare vision of the Britishness of my daughter's remote descendants in the female line depending on whether my affirmation of freedom to marry was actually legalised properly in Bangkok. (I let an agent handle any possible extortion issues.) Unless British passports issued in unwitting error confer British nationality, it is going to become ever more difficult with the passing generations to prove that one is a British citizen. All it needs to limit that problem is a simple provision that being born in the UK and having a parent and three grandparents born in the UK also suffices for British citizenship.

I like to think all this simply shows that 'joined up government' is not achievable. If this were happening in Thailand, I'd suspect it was a deliberate multiplication of opportunities for tea money. As it is, the government now has a stealthy method of hiking the immigration tax.

[paully]

If I may précis the judgement, it essentially says that as things currently stand, the Home Office would be within its rights to refuse every single spouse ILR application

Scouse.

If I may beg to differ a little, Scouse:

The Judgment essentially criticises the Home Office (via its employees, the ECOs) for making a major cock-up in this case. The ECOs did not abide by their directions and so the applicant was, wrongly, given less time than she should have been. I've highlighted the relevant parts, in my humble opinion:

"As we have said, the appellant was granted an entry clearance valid for one year on 19 September 2003. Mr Raj told us that one of the consequences of the change to paragraph 282 (which relates to the granting of leave to enter for the probationary period for a spouse) on 1 April 2003 was that Entry Clearance Officers had been instructed, from that date, to issue spouse entry clearances valid for two years. We have not seen a copy of any such direction, but there seems little reason to doubt what Mr Raj said. Although no doubt if the appellant had made a proper analysis of the relevant law and the Immigration Rules and the various changes in them she could have understood what to do, the grant of only a year (rather than two years) in her case has had a number of unfortunate consequences.

The first is that it failed to draw to her attention the need to have two years leave to remain before making an application for indefinite leave. The second is that her application was indeed made when she had been in the United Kingdom for a much shorter period of time than is now envisaged under the Rules with their two-year probationary period. Bearing in mind the points as to the subsistence of the marriage and so on which were taken against her by the Secretary of State, it may well be that she was prejudiced by being led into making an application at that time.

The case is therefore very much 'of its facts' and will not, in my view have any wider effect.

Edited February 28, 2007 by paully

[the scouser]

Paully,

Yes, you are correct with regard to the appeal at hand, but my précis was of the general thrust of the judgement which is that as the law currently stands no spousal application for ILR can possibly be within the rules unless the applicant has obtained an extension, (paras 13-15 of the determination) and that is to do with how the legisaltion was drafted rather than an error in the Home Office's application of it.

Scouse.

[the scouser]

Whatever happened to De minimis lex non curat?

Having just looked it up, I'd say you're probably right, Richard.

Scouse.

[Mossfinn]

Whatever happened to De minimis lex non curat?

Having also just looked it up, I thought at first it meant, ' Lost in translation', which at first glance I thought quite relevant but having read up what it actually means, I think you have got it just about right.

Moss

[paully]

Paully,

Yes, you are correct with regard to the appeal at hand, but my précis was of the general thrust of the judgement which is that as the law currently stands no spousal application for ILR can possibly be within the rules unless the applicant has obtained an extension, (paras 13-15 of the determination) and that is to do with how the legisaltion was drafted rather than an error in the Home Office's application of it.

Scouse.

Yes, the Rules in this regard are nonsensical. But, this of course means that the Home Office effectively cannot legally refuse a ILR spousal application as long as the spouse has met the residence requirements, ie: can show he/she has not spent more than 90 days abroad in any year. It's the Home Office, not applicants, that should be concerned - they have a technically unworkable Rule.

[the scouser]

The 90-day rule is in respect of applications for naturalisation, not ILR, which was the point under discussion in this determination.

Scouse.